NOTICE 2019 IL App (5th) 160280-U NOTICE Decision filed 11/08/19. The This order was filed under text of this decision may be NO. 5-16-0280 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 15-CF-937 ) ERIC TUCKER, ) Honorable ) Zina R. Cruse, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court. Justices Moore and Wharton* concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction affirmed where there was no violation of defendant’s constitutional right to a speedy trial.
¶2 Defendant, Eric Tucker, was convicted of first-degree murder and sentenced to 20
years’ imprisonment following a stipulated bench trial in the circuit court of St. Clair
County. He appeals the conviction and sentence, arguing that his constitutional right to a
speedy trial was violated. We affirm.
* Justice Chapman was originally assigned to participate in this case. Justice Wharton was substituted on the panel subsequent to Justice Chapman’s retirement and has read the briefs and listened to the recording of oral argument. 1 ¶3 I. Background
¶4 Before reciting the facts necessary to our disposition of this appeal, we note that
the dispositive issue relates to the dismissal of the original charges brought against
defendant for the double homicide of Darnell Turner and Araybia Moore in docket
number 10-CF-598, as well as the subsequent reinstatement of the same charges in docket
number 15-CF-937. The record on appeal contains both the common law record and
transcripts from the latter proceedings (15-CF-937) but does not contain the common law
record or transcripts from the original proceedings (10-CF-598). Consequently, the
following facts, including those relating to the original charges brought against
defendant, will be recited in the order they appear in the record on appeal.
¶5 On August 5, 2015, an assistant state’s attorney (ASA) and a special agent with
the Illinois State Police signed a sworn criminal complaint (15-CF-937) charging
defendant with two counts of first-degree murder (720 ILCS 5/9-1 (West 2010)) for
knowingly shooting both Turner and Moore in the head with a gun causing both of their
deaths on June 13, 2010. Based on these charges, a warrant was issued for defendant’s
arrest on the same date.
¶6 On August 7, 2015, defendant was arrested and taken into custody. The following
day, defendant appeared in court before the Honorable Patricia Kievlan. At defendant’s
request, the circuit court appointed a public defender to represent him.
¶7 On August 14, 2015, defendant was charged by criminal indictment with the same
offenses and appeared in court before the Honorable Stephen Rice for an arraignment
hearing. A public defender was again appointed to represent defendant, and defendant 2 entered a plea of not guilty. The matter was set for trial and a status hearing was
scheduled for August 19, 2015.
¶8 On August 19, 2015, defendant, along with court-appointed counsel, appeared
before the Honorable Zina Cruse. The State represented that the parties had agreed to
continue “the new matters” charged in docket number 15-CF-937, tolling defendant’s
speedy-trial time. In response, defense counsel stated that, although defendant was
agreeing to toll the speedy-trial time, counsel anticipated filing “a motion claiming that
the State ha[d] already violated [defendant’s] speedy trial rights based on hi[m] having
filed a motion for speedy trial based on these same allegations when it was previously
charged.” The State indicated that it would not attempt to use the “by-agreement
continuance to undercut [defendant’s] arguments on the other issue from the 10-CF
prosecution.” At the conclusion of the hearing, the court signed a written order indicating
that defendant’s speedy-trial rights had been tolled by an agreed continuance to
September 21, 2015, and a status hearing was set for that date.
¶9 On September 21, 2015, defendant, along with defense counsel, appeared in court
before the Honorable Jan Fiss. A written order was entered reflecting the parties’
agreement that “the discovery provided by the [State] in Case No. 10-CF-598 shall be
considered discovery in the [present] matter and need not be re-tendered” by the State.
The parties also agreed to continue the matter to October 19, 2015, which, again, tolled
the speedy-trial time.
¶ 10 On October 19, 2015, a status hearing was held before the Honorable Zina Cruse.
Pursuant to a written order entered on that date, the State and defendant were engaged in 3 ongoing negotiations regarding a plea deal. Accordingly, the matter was continued, by
agreement, to November 9, 2015, which, again, tolled the speedy-trial time.
¶ 11 On November 9, 2015, defendant filed a motion to dismiss for a violation of his
statutory speedy-trial right, or in the alternative, for a violation of his constitutional
speedy-trial right. Attached as defendant’s exhibits were several documents from the
original proceedings (10-CF-598), which included the State’s motion for dismissal of the
original charges with leave to reinstate and the circuit court’s order dismissing the
charges with leave to reinstate on “the motion of the State to nolle pros the charges
against the defendant.”
¶ 12 In his motion, defendant made the following factual allegations. He was initially
indicted for the double homicide of Turner and Moore on July 16, 2010. While defendant
sat in jail on the pending charges, the case was delayed on several occasions. One delay
in the case was attributable to defendant obtaining new counsel, while additional delays
occurred when the case was reassigned to a new ASA and trial judge. A firm trial date
was set for February 24, 2014, giving both sides time to analyze the voluminous
discovery and hours of videotaped evidence. As the trial date neared, and the case was
approaching the four-year mark, the case was again reassigned to another ASA, and, 10
days before trial, “a seasoned” ASA, Jon Allard, was assigned to serve as second chair in
the prosecution of the case. Defendant arrived at the courthouse ready for his trial on
February 24, 2014, but the State moved to dismiss the case with leave to reinstate. Before
the circuit court ruled on the State’s motion, defendant filed a motion for speedy trial
pursuant to section 103-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5 4 (West 2012)). Defense counsel also went on the record to “further specify [defendant’s]
firm demand for trial” and voice “his strong suspicion that the State’s dismissal with
leave to reinstate was a continuance tactic, [sic] and proffered the reasons for that
suspicion.”
¶ 13 Defendant further alleged that, following the circuit court’s dismissal of the case,
the State took steps to better the prosecution of the case and to correct mistakes identified
by ASA Allard including the testing of certain evidence and efforts to secure cooperation
from Larry McCaleb Jr., a key witness in the State’s case. McCaleb Jr. had not been “a
particularly cooperative witness for the State in the days leading up to [defendant’s]
scheduled trial.” Around the time the charges were dismissed against defendant, the State
charged McCaleb Jr. with the same offenses, and he sat in jail until he was released on
home detention following the execution of a plea agreement requiring him to testify
against defendant.
¶ 14 After setting out these facts, defendant made the following arguments in support
of his motion to dismiss. First, he argued that his statutory speedy-trial rights had been
violated because the speedy-trial time set forth in the statute was not tolled when the
State struck the charges with leave to reinstate. Second, he argued that, if the State’s
dismissal was classified as a nolle prosequi, his constitutional speedy-trial rights had
been violated because the State dismissed the charges “to obtain a tactical advantage.”
However, defendant requested that the circuit court set the matter for hearing to develop a
record “regarding the State’s motivations for dismissing this case.” Following a status
5 hearing that same day, the circuit court continued the case, by agreement of the parties, to
January 11, 2016. The case was set for a hearing on defendant’s motion to dismiss.
¶ 15 On January 5, 2016, the State filed a response to defendant’s motion to dismiss,
arguing that its dismissal of the charges was properly characterized as a nolle prosequi,
which tolled the statutory speedy-trial time. In support, the State emphasized that the
circuit court’s order classified the State’s motion as a motion to nol-pros the charges
when it dismissed charges with leave to reinstate. The State also emphasized that because
defendant’s bond was cancelled and he was released from custody on the charges on
February 24, 2014, his speedy-trial demand had no effect. The State, relying on People v.
Norris, 214 Ill. 2d 92, 104 (2005), further argued that it was not barred from proceeding
on the refiled charges against defendant because defendant had made no showing of
harassment, bad faith, or fundamental unfairness.
¶ 16 Next, the State argued that defendant’s constitutional right to a speedy trial was
not violated for several reasons. First, the State asserted that the delay between
defendant’s initial arrest to the dismissal of the original charges was largely attributable
to agreed continuances or continuances on defendant’s own motion. Second, the State
contended that defendant did not assert his speedy-trial right until the date the State
sought to dismiss the charges. Lastly, the State asserted that it dismissed the case to
obtain a cooperation agreement with key witnesses and to conduct further testing on
physical evidence.
¶ 17 On January 21, 2016, after the motion hearing was rescheduled by agreement of
the parties, defendant filed a supplemental motion to dismiss, clarifying that the 6 “constitutional claim being raised by the [d]efendant is that the State used its power to
Nolle Pros to gain tactical advantage and to avoid statutory speedy trial limitations.”
Defendant alternatively argued that, in the event the circuit court concluded “that
constitutional speedy trial is inapplicable because the [d]efendant was not charged during
relevant time periods,” his constitutional right to due process was violated by the State’s
strategic use of the dismissal.
¶ 18 On February 3, 2016, the State filed a response to defendant’s supplemental
motion to dismiss, arguing that defendant’s constitutional right to due process had not
been violated by the dismissal. Specifically, the State argued defendant could not show
that he had suffered actual and substantial prejudice by the delay between the dismissal
and refiling of the same charges. The State also argued that the delay was reasonable and
necessary.
¶ 19 On March 1, 2016, the circuit court entered an order resetting the hearing on
defendant’s motions to dismiss for April 14, 2016, by agreement of the parties, tolling his
speedy-trial time. The order included a notation that defendant was scheduled to be
sentenced in federal court on March 31, 2016.
¶ 20 On April 14, 2016, the circuit court held a hearing on defendant’s motions to
dismiss. At the outset of the hearing, the court, by agreement of both parties, took judicial
notice of the entirety of the file in docket number 10-CF-598 and admitted defendant’s
exhibits. Defendant’s exhibits consisted of several filings from docket number
10-CF-598, including a scheduling order, the State’s motion for dismissal with leave to
7 reinstate, and the court’s order dismissing the case, as well as the report of the
proceedings from February 24, 2014, in docket number 10-CF-598. 1
¶ 21 The scheduling order, dated June 10, 2013, reflects that the circuit court continued
the matter on defendant’s motion without objection from the State and set the matter for
trial on February 24, 2014. The order also reflects that the deadline for discovery was set
for September 20, 2013, the deadline for dispositive motions was set for November 15,
2013, and the deadline for hearings on any dispositive motions was set for January 15,
2014. In addition, the phrase “speedy trial tolled” was included at the bottom of the order.
¶ 22 In the State’s motion for dismissal with leave to reinstate, dated February 24,
2014, the State sought “dismissal of the charges contained herein, with leave to
reinstate.” However, in the corresponding written order, also dated February 24, 2014,
the court granted “the motion of the State to nolle pros the charges against the defendant”
and dismissed the charges against defendant “with leave to reinstate.”
¶ 23 The report of proceedings from February 24, 2014, provides the following details.
At the outset, the State presented to the circuit court a proposed order dismissing the case
with leave to reinstate. At the court’s direction, the State also prepared a written motion
seeking dismissal of the charges against the defendant with leave to reinstate. Defense
counsel presented to the court a motion demanding a speedy trial. The parties were then
provided the opportunity to present arguments on these filings.
1 Defendant admitted a total of eight exhibits at the hearing; however, we recite the facts from these exhibits only as they pertain to the issues on appeal. We also note that the names and case numbers on two of the exhibits have been redacted and appear to involve an entirely different case. 8 ¶ 24 Defense counsel, anticipating that the State would reinstate the charges against
defendant in the future, asserted that the defense was prepared to proceed to trial and
reiterated that defendant had been in jail for 1344 days awaiting his day in court. Defense
counsel also stated that the State’s dismissal came after the following notable events:
defendant refusing the State’s plea offer, indicating that he wanted his day in court; failed
attempts at further negotiations; and the circuit court’s favorable rulings on defendant’s
motion to suppress certain statements made by defendant and on motions in limine the
week before the State sought dismissal. As a final point, defense counsel noted that the
second ASA, who had been assigned to the case a week to 10 days prior to the scheduled
trial date, would not have been prepared to go to trial.
¶ 25 In response, the State asserted that the case had been continued “no less than 16
times, all on motion of the defendant.” According to the State, the case was “around [d]ay
58 or 59 of the speedy trial counter.” The State also asserted that the scheduling order had
been filed with the circuit court in June 2013, which continued the matter on defendant’s
motion. Defense counsel then responded by asserting that, in June 2013, he had to beg the
court to set the case in 2014 because preparation would take months and he had come
into the case late. Following defense counsel’s response, the court signed the order
prepared by the State, dismissing the charges against defendant with leave to reinstate
and canceling defendant’s bond.
¶ 26 After the circuit court admitted the exhibits, the defense called ASA Kristi Flint,
who testified to the following details. She worked as an ASA in St. Clair County from
March 2013 to August 31, 2014. In March 2013, she was assigned to the violent crime 9 unit as a prosecuting attorney and became involved in defendant’s case. Shortly
thereafter, the case was assigned to a new judge. In June 2013, the parties appeared
before the newly assigned judge for a case management conference. At the conference,
both parties requested a continuance because neither party was prepared to go to trial on
the set date. Both parties advised the judge that the discovery in the case was voluminous
and extensive, as it involved a major case squad investigation. The judge reluctantly
granted a continuance and agreed to set the trial date for February 24, 2014, giving both
parties approximately eight months to prepare.
¶ 27 ASA Flint began to “ramp up preparations” for the trial in January 2014. In
February 2014, ASA Allard was assigned as ASA Flint’s second chair at trial. ASA Flint
discovered potential issues with the case and discussed these issues with the office both
before and after ASA Allard was assigned to the case. The major problem arose with the
eyewitnesses to the murder, McCaleb Jr. and Kevin Clark, in that they were
uncooperative and unwilling to testify. After she was unsuccessful in communicating
with these witnesses, ASA Flint spoke with the witnesses’ family members and possibly
a girlfriend. Based on these communications, ASA Flint learned that the witnesses were
not going to testify at trial. Shortly before defendant’s scheduled trial date, McCaleb Jr.
was charged with the murder of the same two individuals. ASA Flint recalled that
additional scientific testing could have been performed on several pieces of physical
evidence, but she did not view this as a major problem because she believed the
eyewitness testimony would be sufficient to prove the case. Following the dismissal of
the charges, additional testing was performed on the evidence and McCaleb Jr. executed 10 a cooperating plea agreement. When ASA Flint filed the motion to dismiss, she intended
to refile the charges against defendant.
¶ 28 On cross-examination, ASA Flint clarified that she did not intend to bring the
“2010 case back to life” but, instead, planned on filing a new complaint. Prior to seeking
dismissal of the case, ASA Flint notified opposing counsel of her intention to file the
motion to dismiss. Defendant had not demanded a speedy trial before February 24, 2014,
and she believed the case was on “Day 58 or 59.” Flint explained that she wanted to
prosecute the case but could not “knowing that we only got one bite at the apple.”
¶ 29 Next, the defense called ASA Allard, who testified to the following. ASA Allard
started working in the St. Clair County State’s Attorney’s office in 1996. He was
assigned as ASA Flint’s co-counsel in defendant’s case shortly before trial and noticed
several “red flags” after he reviewed the file. First, he believed there was sufficient
evidence to charge McCaleb Jr. under a theory of accountability. Despite having a
subpoena, it was unclear whether McCaleb Jr. would appear to testify at trial because no
one had been able to contact him. In ASA Allard’s opinion, the case was not ready to
proceed to trial because there were things that could be done to strengthen the evidence.
After McCaleb Jr. was charged, a cooperation agreement was entered in which he agreed
to testify at defendant’s trial. ASA Allard also believed additional evidentiary items
should have been subjected to scientific testing prior to trial.
¶ 30 During the State’s closing argument, the circuit court inquired whether the State
was “manipulating” the court’s docket when it dismissed the charges with the intent to
refile. In response, the State represented that it had balanced the seriousness of the 11 offense with the evidentiary issues and determined that the prudent course of action was
to dismiss the case rather than ask for a continuance that it may not have been able to
meet. The State also asserted that it had an ethical obligation to release defendant until it
had secured enough evidence. The State denied that it had dismissed the case to evade
defendant’s speedy-trial rights, noting that defendant had not made a speedy-trial demand
before the State sought to dismiss the case. The court then asked if the State thought it
could hold the court hostage due to its “failure to be diligent in [its] prosecution.” The
State asserted that there was no indication that the witnesses were uncooperative until the
trial date neared, and that it felt it could not move forward without the witnesses’
testimony in a case involving such serious offenses. After hearing the parties’ arguments,
the court took the motions under advisement.
¶ 31 On April 18, 2016, the circuit court issued its findings and written order. The court
determined that, following the dismissal of the original charges against defendant,
“formal prosecution no longer existed; therefore, the demand for speedy trial had no
effect.” The court then applied the four-factor test set out in Barker v. Wingo, 407 U.S.
514, 530 (1972), to determine whether there was a violation of defendant’s constitutional
speedy-trial right. In doing so, the court found that the length of the delay between
defendant’s arrest and trial, which was more than five years, was presumptively
prejudicial and, thus, required consideration of the remaining factors.
¶ 32 The court next found that the reasons for the delay in the original proceedings
indicated nothing deliberate nor negligent on the part of the State. The court noted that
the original proceedings were continued approximately 12 times on defendant’s motion, 12 twice by agreement, and twice by the court. The court further found that defendant did
not assert his right to a speedy trial until the State sought to dismiss the charges on
February 24, 2014; there was no evidence that defendant’s right to a fair trial was
affected; and defendant did not suffer substantial prejudice by losing an advantage over
the State due to the State’s inadequate preparation for trial.
¶ 33 As a final matter, the court considered whether the delay violated defendant’s
constitutional right to due process. The court, citing People v. Sanders, 86 Ill. App. 3d
457, 472 (1980), determined that this required a showing that the delay “ ‘caused
substantial prejudice to the defendant’s right to a fair trial and that the delay was an
intentional device to gain a tactical advantage over the accused.’ ” The court found that,
although defendant established intentional tactical maneuvering of the court’s schedule, it
was questionable whether the State used the dismissal to gain an advantage over
defendant. Nevertheless, the court found that defendant had failed to establish a
substantial prejudice to his right to a fair trial. Accordingly, the court denied defendant’s
motions to dismiss.
¶ 34 On June 27, 2016, pursuant to negotiations, the State dismissed the criminal
indictment and filed a criminal information charging defendant with one count of first-
degree murder for the shooting death of Moore. Defendant waived his right to a jury trial
and the case proceeded to a stipulated bench trial. Defendant was found guilty and
sentenced to 20 years’ imprisonment. This appeal followed.
13 ¶ 35 II. Analysis
¶ 36 On appeal, defendant asserts that his constitutional speedy-trial rights were
violated when the State dismissed the original charges approximately 43 months after he
was taken into custody and refiled the same charges 18 months after the dismissal. He
claims that the circuit court incorrectly applied the law and failed to consider the 18-
month delay when it denied his motion to dismiss.
¶ 37 “When resolving a constitutional speedy-trial claim, any factual determinations
made by the [circuit] court, which are contained in the record, shall be upheld on review
unless they are against the manifest weight of the evidence.” People v. Crane, 195 Ill. 2d
42, 51 (2001). However, “the ultimate determination of whether a defendant’s
constitutional speedy-trial right has been violated is subject to de novo review.” Id. at 52.
¶ 38 “The right to a speedy trial is guaranteed by the Federal and Illinois Constitutions
(U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8).” People v. Staten, 159 Ill. 2d
419, 426 (1994). A sixth amendment right to a speedy trial is made applicable to the
states by the due process clause of the fourteenth amendment. Klopfer v. North Carolina,
386 U.S. 213 (1967). In Illinois, a criminal defendant also has a statutory right to a
speedy trial. 725 ILCS 5/103-5 (West 2010). However, “[t]he constitutional and statutory
rights to a speedy trial are not necessarily coextensive.” People v. Kilcauski, 2016 IL App
(5th) 140526, ¶ 19 (citing People v. Campa, 217 Ill. 2d 243, 250 (2005)). Notably, a
claimed violation of a defendant’s statutory speedy-trial right calls for counting days in
custody, whereas, “analysis of whether a Constitutional right to speedy trial has been
abridged calls for a ‘functional analysis in the particular context of the case.’ ” People v. 14 Clark, 188 Ill. App. 3d 130, 134 (1989) (quoting Barker v. Wingo, 407 U.S. 514, 522
(1972)).
¶ 39 In this appeal, the sole issue before this court is whether defendant’s constitutional
speedy-trial right has been violated. 2 Accordingly, we need not calculate the specific
number of days defendant spent in custody; instead, we consider the specific
circumstances presented in this case and apply the four-factor balancing test set out in
Barker. See Crane, 195 Ill. 2d at 52. Courts consider the following four factors in
determining whether a defendant’s constitutional speedy-trial right has been violated:
(1) the length of the delay; (2) the reasons for the delay; (3) a defendant’s assertion of his
right; and (4) the prejudice, if any, to a defendant. People v. Kaczmarek, 207 Ill. 2d 288,
294-95 (2003) (citing Barker, 407 U.S. at 530). “All four factors are closely related and
no one factor is necessary or sufficient to a finding that the right to a speedy trial has been
violated.” Crane, 195 Ill. 2d at 52 (citing Barker, 407 U.S. at 530-33). “Because of the
seriousness of the remedy—‘a defendant who may be guilty of a serious crime will go
free, without having been tried’—the right to a speedy trial should always be in balance,
and not inconsistent, with the rights of public justice.” Id. at 47 (quoting Barker, 407 U.S.
at 522).
¶ 40 “When assessing a constitutional speedy-trial claim, the first consideration is the
length of the delay.” Kaczmarek, 207 Ill. 2d at 295. As an initial matter, a court should
2 As noted, defendant initially sought to dismiss the case based on violations of both his statutory (725 ILCS 5/103-5 (West 2010)) and constitutional speedy-trial rights. He also filed a supplement to his motion, in which he sought dismissal for a violation of his constitutional right to due process in the event the circuit court found that the speedy-trial time was tolled because the State sought dismissal by nolle prosequi. However, the sole issue raised by defendant on appeal is whether there was a violation of his constitutional right to a speedy trial. 15 consider whether the length of the delay is presumptively prejudicial. Crane, 195 Ill. 2d
at 52. “A finding of ‘presumptive prejudice,’ however, does not imply that the delay will
be found to have actually prejudiced the defendant.” Id. at 53 (quoting Doggett v. United
States, 505 U.S. 647, 652 (1992)). Instead, “the first factor has a triggering function, and
unless a presumptively prejudicial period of delay occurs, a court need not conduct the
remainder of the analysis.” People v. Silver, 376 Ill. App. 3d 780, 784 (2007) (citing
People v. Makes, 103 Ill. App. 3d 232, 236 (1981); People v. Belcher, 186 Ill. App. 3d
202, 206 (1989)). “If the length of the delay is presumptively prejudicial, the court should
go on to balance the remaining three factors.” Id. (citing Belcher, 186 Ill. App. 3d at 206).
“In general, courts have recognized a delay approaching one year to be ‘presumptively
prejudicial.’ ” Crane, 195 Ill. 2d at 52-53 (citing Barker, 407 U.S. at 530-31; People v.
Lock, 266 Ill. App. 3d 185, 191 (1994)).
¶ 41 Here, defendant asserts, and the State concedes, the length of the delay is over one
year. Defendant was originally charged by indictment on July 16, 2010, and he was not
brought to trial until June 27, 2016. Thus, the length of the delay is sufficient to trigger
application of the remaining Barker factors.
¶ 42 In considering the second factor, we must examine the reasons for the delay.
Crane, 195 Ill. 2d at 53. A defendant need only demonstrate that the delay was not
attributable to his actions. People v. O’Quinn, 339 Ill. App. 3d 347, 354 (2003). The State
bears the burden of providing justification for any delay, and any reasons which may be
offered to explain a delay are assigned different weights. Crane, 195 Ill. 2d at 53 (citing
People v. Singleton, 278 Ill. App. 3d 296, 299 (1996); Barker, 407 U.S. at 531). 16 Specifically, evidence that the State intentionally delayed prosecution to gain a tactical
advantage will weigh heavily against the State, while faulty police procedure, negligence,
or incompetence, though still charged against the State, will be weighed less heavily. Id.
(citing People v. Wills, 153 Ill. App. 3d 328 (1987); Singleton, 278 Ill. App. 3d at 300;
People v. Williams, 299 Ill. App. 3d 143, 148 (1998)). Other reasons for delay, including
the unavailability or inability to locate a competent witness, are usually found to be valid
explanations that justify a reasonable period of delay. Id. at 53-54 (citing People v.
Sanders, 86 Ill. App. 3d 457 (1980)).
¶ 43 Here, the State provides different reasons for certain periods of the delay. The
State asserts the initial period of approximately 43 months between the original charges
and the nolle prosequi should weigh against defendant. The State notes that, in denying
defendant’s motion to dismiss, the circuit court found that the original proceedings were
continued 12 times on defendant’s motion, twice due to the court’s unavailability, and
twice by agreement. Defendant acknowledges in his reply brief that the “continuances in
the first 43 months were not in dispute; had the State been prepared for trial, there would
have been no speedy trial issues.” The State also asserts that most of the 10-month period
between the second indictment and bench trial should weigh against defendant. While the
State admits responsibility for three months of this delay, it asserts, and the record
supports, that defendant shares responsibility for the remainder of the delay because the
case was continued by agreement on several occasions. Consequently, we conclude that
most of the delay during these periods is attributable to defendant.
17 ¶ 44 Defendant’s primary argument is based on the 18-month period between the
State’s nolle prosequi of the original murder charges and subsequent refiling of the same
charges. The State asserts that this period should not be weighed in a speedy-trial
analysis.
¶ 45 Our colleagues in the Second District considered a similar issue in People v.
Totzke, 2012 IL App (2d) 110823. In that case, the Second District noted that the
constitutional right to a speedy trial “applies only within ‘the confines of a formal
criminal prosecution,’ that is, once a defendant has been arrested or charged.” Id. ¶ 19
(quoting Doggett, 505 U.S. at 655). The Second District also noted that the constitutional
right to a speedy trial does not apply after the State, “ ‘acting in good faith,’ ” formally
drops charges, and any undue delay after charges have been dropped “ ‘must be
scrutinized under the Due Process Clause, not the Speedy Trial Clause.’ ” Id. ¶ 22
(quoting United States v. MacDonald, 456 U.S. 1, 7 (1982)). The Second District further
noted that “[i]f the nolle prosequi is taken in good faith, the constitutional speedy-trial
guarantee does not apply during the period of time between the nolle prosequi and the
new indictment.” Id. ¶ 24 (citing Sanders, 86 Ill. App. 3d at 469). In applying these
principles, the Second District concluded that, “although the delays that occurred during
the two prosecutions could be considered under a speedy-trial analysis, only a due
process analysis applied to the 285-day delay between the nolle prosequi and the
defendant’s indictment.” (Emphasis in original.) Id. ¶ 25.
¶ 46 Here, the State dismissed the case and defendant was released for a period of 18
months. Defendant acknowledges that he was not formally charged during this period but 18 argues that the 18 months should be considered in the constitutional speedy-trial analysis
because the State was not acting in good faith when it dismissed the charges. The State
asserts, and the record supports, that it decided to dismiss the case because it needed
additional time to obtain cooperation agreements from uncooperative witnesses and to
conduct additional testing on the physical evidence. Although the State’s dismissal came
on the scheduled trial date, the State believed, and defendant did not contest, that only 58
or 59 of the 120 days of that statutory speedy-trial time period had elapsed. The record
shows that the State advised defense counsel of its intention to dismiss the charges prior
to the trial, which prompted defendant to file his first speedy-trial demand. Under these
circumstances, we conclude that the State dismissed the charges against defendant in
good faith and, thus, the 18-month period should not be considered in our analysis of this
issue. Because most of the delay is attributable to defendant, we conclude that this factor
weighs against him.
¶ 47 We next consider whether defendant asserted his right to a speedy trial. Sanders,
86 Ill. App. 3d at 471. As noted, defendant filed his first speedy-trial demand on the same
date the State filed its motion seeking the circuit court’s approval to dismiss the charges
by nolle prosequi. After the court granted the State’s motion, no charges were pending
against him. “While such a demand may have been effective if defendant had remained in
custody or had been released on bail, here he was under no restraint or charge and the
demand to be tried on nonexistent charges must be considered ineffective.” Id. Moreover,
defendant did not file his motion to dismiss on speedy-trial grounds until three months
after his arrest, and he shared in the responsibilities for the subsequent delays by agreeing 19 to continuances. Under these circumstances, we conclude that this factor weighs against
defendant.
¶ 48 Lastly, we consider the prejudice suffered by defendant as a result of the delay.
Unlike a finding of presumptive prejudice, courts considering the fourth factor assess
prejudice “in the light of the interests of defendants which the speedy trial right was
designed to protect.” Barker, 407 U.S. at 532. The right was designed to prevent
oppressive pretrial incarceration, minimize a defendant’s anxiety and concern, and limit
the possibility that the defense may be impaired. Sanders, 86 Ill. App. 3d at 472 (citing
Barker, 407 U.S. at 532). Although defendant was in custody for approximately 43
months prior to the nolle prosequi and for approximately 10 months following his second
arrest, he does not dispute that most of the delays during these periods are attributable to
him. Following the nolle prosequi, he was released for 18 months with no charges
pending against him. While defendant argues he had anxiety over the State recharging
him for the offenses during this period, our supreme court has noted “that this factor is
present to some extent in every case and absent some unusual showing, this
inconvenience alone is of slight import.” Kaczmarek, 207 Ill. 2d at 300. We find it
significant that defendant has failed to specify how his ability to prepare his defense was
impaired or adversely affected by the delay in trying the murder charge—the most
serious interest the speedy-trial right was designed to protect. See Doggett, 505 U.S. at
654.
¶ 49 After carefully examining the record and after considering each factor, we
conclude that defendant was not denied his constitutional right to a speedy trial. While 20 we agree that the delay was indeed lengthy, we must also balance defendant’s speedy-
trial right with the rights of public justice. See Crane, 195 Ill. 2d at 62. Defendant, here,
was originally charged with the murder of two individuals and was released from custody
for an 18-month period between the State’s nolle prosequi and his arrest after the State
refiled the charges. Uncertain of its ability to secure convictions, the State dismissed the
charges after learning shortly before trial that two key witnesses, who were subpoenaed
to testify, were uncooperative and may not appear at trial. Additionally, the State
determined that additional forensic testing of the physical evidence was necessary. Under
these circumstances, we cannot say that the delay amounts to a constitutional violation
warranting the “severe remedy of dismissal of the indictment when the right has been
deprived.” Barker, 407 U.S. at 522. Therefore, we hold that defendant was not denied his
constitutional right to a speedy trial.
¶ 50 III. Conclusion
¶ 51 For the foregoing reasons, the judgment of the circuit court of St. Clair County is
hereby affirmed.
¶ 52 Affirmed.